The Eye is wondering if we have our own “Don Corleone” in City Hall. This is the story KRQE News 13 said didn't exist. Surprise! We have it! Unfortunately for them (and Darren White and his Taco Bell visiting right hand man, T.J. Wilham), The Eye found what this group of "dedicated news professionals" wanted to sweep under the carpet. The Eye has the story KRQE posted on their website before someone at the station decided the public it serves deserves to know about and pulled it. KOAT News 7 also posted a similar story before removing it. What is known is, KRQE reporter Katie Kim posted this story on-line at 4:09 pm. Then it was taken down shortly after going up and its very existence denied by station. Why? Why post a news story regarding an FBI investigate that involves the city's Chief Public Safety Officer and his wife; then pull it down in a matter of hours? Why deny its existence? If there was a legitimate reason for taking it off their website why not say so? Why engage in behavior that makes it look like a cover-up?
Here are other questions worth asking KRQE News 13 and KOAT News 7:
Did the fact that Darren White worked as a reporter at KRQE and still has friends there influence the station's decision to hide their own news story?
Would KRQE editor Paul Burt's repeated statements that he "would walk through fire for Darren White" indicate bias or lack of objectivity when it came to covering White or his current wife negatively?
Would the fact that mayoral spokesperson Chris Ramirez worked at KOAT News 7 as the City Hall reporter and also maintains relationships with his former employer have played a role in KOAT's decision to pull their own story?
Could former police beat reporter T.J. Wilham's friendships and personal contacts at the Albuquerque Journal be part of the reason the newspaper hasn't written a single word about the Ahrensfield defense motion or about Wilham's brand new city vehicle?
How incestuous is Albuquerque? (and we haven't begun to mention former KRQE anchor Erika Ruiz's role in all this)
Did Darren White, Chris Ramirez, T.J. Wilham or any other member of the Berry Administration contact personnel at either of these stations and demand that the news stories be pulled?
Is it news that when he was first asked who tipped him off that he was being investigated for selling drugs and other criminal activity that Shawn Bryan said it was Kathy McConnell, aka Darren White's then girlfriend/current wife?
Is it news that the FBI interviewed the current Mrs. White because she may have been texting information about the criminal investigation to Erika Ruiz, aka Mrs. Shawn Bryan?
If information was being exchanged between Mrs. White and Mrs. Bryan, where did that information come from?
How close was Darren White truly with Shawn Bryan before testifying that he barely knew him?
You can contact your KRQE News 13 here:
http://www.krqe.com/subindex/participate/report_it
KOAT News 7 here:
http://www.koat.com/contact/index.html
Finally, who is the “Don Corleone” who is responsible for shutting down this news story? Were they made an offer that they couldn’t refuse? Or is it just some “Dirty Bird”? It might be a good idea for our local media to step out of the cooler and leave the fish alone; if this is what has transpired. Otherwise; something simply smells fishy.
Here is the story as it appears on the KRQE website:
Convicted ex-cop files motion to dismiss
Ahrensfield defense says key evidence left out
Updated: Monday, 20 Dec 2010, 4:09 PM MST
Published : Monday, 20 Dec 2010, 4:09 PM MST
• Reporter: Katie Kim
ALBUQUERQUE (KRQE) - A jury found former Albuquerque Police officer Brad Ahrensfield guilty of obstructing justice last week for tipping off a friend who was the target of a criminal investigation. But on Monday, his defense filed a motion to dismiss, arguing the government violated rules by not disclosing key evidence.
According to the defense, the evidence in question is at least one government-conducted interview with the business owner at the center of the investigation. The interview was taped in April after the first trial ended with a deadlocked jury.
Ahrensfield was still an APD officer when he told a friend last year that investigators suspected drugs and stolen goods were being peddled out of his business.
Ahrensfield always insisted he didn't tell his friend he was the one being investigated. The defense claims when the FBI interviewed the friend, he said it was then-Sheriff Darren White's girlfriend who tipped him off that he was the subject of the investigation.
According to the defense, it didn't know this interview was conducted until last week.
A federal judge said he needs transcripts of that recorded interview and the entire trial to make a decision. Ahrensfield's attorney told News 13 it will likely take one to two months before the judge decides on the motion to dismiss.
If the judge upholds the guilty conviction, Ahrensfield faces up to 20 years in prison.
Source:
http://webcache.googleusercontent.com/search?q=cache:ZGsX3YMlGpEJ:www.krqe.com/dpp/news/local/central/convicted-ex-cop-files-motion-to-dismiss+http://www.krqe.com/dpp/news/local/central/convicted-ex-cop-files-motion-to-dismiss&cd=1&hl=en&ct=clnk&gl=us
Dec 30, 2010
Dec 28, 2010
Presenting: His Majesty and a Flawed Policy
For many years, police officers with the Albuquerque Police Department have been allowed take home vehicles. The “Take Home” policy is a benefit to the officer(s) and to the citizen(s) of our great City. The moment a police officer gets in his/her squad car; they are considered on duty. Here is the benefit; the officer gets to use the vehicle and the citizen gets the service of an officer without the officer being paid on the clock, while they are utilizing the vehicle. Officers are bound to stop for in progress crimes, traffic hazards, etc… Many times, police officers have been flagged down to take various actions simply because they were driving a police car. Officers understand and accept this, as it is part of the policy. Obviously, if they are already on duty, this is not anything above or beyond the call of duty. The presence of a police car provides a certain sense of security. In law enforcement it is referred to as an “Omni Presence.” The Mayor and his administration (in their infantile stage of an administration) believe that days of take home vehicles are over. Well, over for many, but not for all. Any police officer residing outside of city limits (within 11 miles of the Big I) can no longer use their take home vehicle. The exception to this movement is; if you’re a crony of his “Majesty” or part of the administration you are exempt and are bestowed this privilege.
What does this mean for those affected? They are forced to drive to work in their personal vehicles. Which may not seem like a big deal but it is more complex than it appears. Driving personal vehicles is a huge officer safety issue. There are people that have a disdain and hatred for police officers, and will do anything to get an officer in a position of disadvantage. Just ask those who have dealt with COPWATCH. Out of the six area commands, there is only one that provides a secure place for officers to park their personal vehicles. In the spirit of officer safety, the best action for the officer is to drive to his/her police substation and change into his or her uniform. None of the area commands have enough secured lockers or facilities for these officers to achieve this goal. In some of the substations, the plumbing barely works.
What about the civilians who are allowed to keep their take home cars and provide absolutely no benefit to the citizens? If the take home car policy was changed, solely for budget issues, why are civilians (none sworn employees) allowed to have take home vehicles? For instance, the police fleet manager has a take home car. He is not on call and does not respond during off duty hours. He has a desk job and keeps track of all city owned vehicles. TJ Wilham (who prided himself in bashing the City and the police while working for the local news paper) has a take home car. Now he is triumphant of the actions of the City and the police. The question is; for what reason, no one would give us a clear justification. The Mayor has two take home cars. Why? Many of Berry’s administrators have take home cars. Why? The Prisoner Transport Center supervisors have FULLY marked (lights, sirens, radio equipped) take home cars. Why? Darren White and TJ Wilham have been observed responding to incidents running code (full lights and sirens initiated and going through all intersections) in their take home cars. Why? Neither one is a fully sworn member of the Police Department. Only police officer may run full police equipment while responding to an emergency. If we are truly in a budget crunch, the Mayor needs to clean his closest before he starts cleaning someone else’s. This hypocrisy must stop and produce the product that was promised to the citizens by Mayor Berry.
Just this week, Chief Schultz was seen driving his City car with family, like personnel aboard. Although the citizens are appreciative that he followed traffic laws (turn signals and seat belts), why is he allowed to bend the rules? For those inquisitive minds, our Chief was eastbound on I-40 and exited at San Mateo, at approximately 11:00 A.M. One of our eyes sent us this information and a few photos. TJ Wilham was seen shopping at Walgreens and going for a bite in his take home vehicle, even though it is doubtful that this was part of his official duties. The photos we have does not show any crime tape or the mobile crime van. Maybe he was grabbing a quick snack for Mr. White or for the Mayor.
If the City Council is truly worried about the budget, they need to start at the top, and work their way down. Why is the City Council allowing the targeting of the police officers? Mayor Berry, Darren White, TJ Wilham, and others are certainly taking advantage of their positions and by proxy taking advantage of the City. The City Council definitely needs to do their homework. Our citizens elected them to be their voice; it’s time for the Council to voice the will of their constituents.
Although,the Eye is not a financial wizard and does not claim to be, here is one thought; pull the City vehicles from the administrators and City employees who do not need them. If by some “fluke” they are forced out to a scene, pay their per diem following the federal guideline. We all know that each entity within the City already has a chain of command on-call roaster that should be used. This alone could save a great deal.
The Eye has attached a few photos for your amusement only. Although the Eye is not the jester for his Majesty Like others appear to be; nevertheless this is entertaining.
What does this mean for those affected? They are forced to drive to work in their personal vehicles. Which may not seem like a big deal but it is more complex than it appears. Driving personal vehicles is a huge officer safety issue. There are people that have a disdain and hatred for police officers, and will do anything to get an officer in a position of disadvantage. Just ask those who have dealt with COPWATCH. Out of the six area commands, there is only one that provides a secure place for officers to park their personal vehicles. In the spirit of officer safety, the best action for the officer is to drive to his/her police substation and change into his or her uniform. None of the area commands have enough secured lockers or facilities for these officers to achieve this goal. In some of the substations, the plumbing barely works.
What about the civilians who are allowed to keep their take home cars and provide absolutely no benefit to the citizens? If the take home car policy was changed, solely for budget issues, why are civilians (none sworn employees) allowed to have take home vehicles? For instance, the police fleet manager has a take home car. He is not on call and does not respond during off duty hours. He has a desk job and keeps track of all city owned vehicles. TJ Wilham (who prided himself in bashing the City and the police while working for the local news paper) has a take home car. Now he is triumphant of the actions of the City and the police. The question is; for what reason, no one would give us a clear justification. The Mayor has two take home cars. Why? Many of Berry’s administrators have take home cars. Why? The Prisoner Transport Center supervisors have FULLY marked (lights, sirens, radio equipped) take home cars. Why? Darren White and TJ Wilham have been observed responding to incidents running code (full lights and sirens initiated and going through all intersections) in their take home cars. Why? Neither one is a fully sworn member of the Police Department. Only police officer may run full police equipment while responding to an emergency. If we are truly in a budget crunch, the Mayor needs to clean his closest before he starts cleaning someone else’s. This hypocrisy must stop and produce the product that was promised to the citizens by Mayor Berry.
Just this week, Chief Schultz was seen driving his City car with family, like personnel aboard. Although the citizens are appreciative that he followed traffic laws (turn signals and seat belts), why is he allowed to bend the rules? For those inquisitive minds, our Chief was eastbound on I-40 and exited at San Mateo, at approximately 11:00 A.M. One of our eyes sent us this information and a few photos. TJ Wilham was seen shopping at Walgreens and going for a bite in his take home vehicle, even though it is doubtful that this was part of his official duties. The photos we have does not show any crime tape or the mobile crime van. Maybe he was grabbing a quick snack for Mr. White or for the Mayor.
If the City Council is truly worried about the budget, they need to start at the top, and work their way down. Why is the City Council allowing the targeting of the police officers? Mayor Berry, Darren White, TJ Wilham, and others are certainly taking advantage of their positions and by proxy taking advantage of the City. The City Council definitely needs to do their homework. Our citizens elected them to be their voice; it’s time for the Council to voice the will of their constituents.
Although,the Eye is not a financial wizard and does not claim to be, here is one thought; pull the City vehicles from the administrators and City employees who do not need them. If by some “fluke” they are forced out to a scene, pay their per diem following the federal guideline. We all know that each entity within the City already has a chain of command on-call roaster that should be used. This alone could save a great deal.
The Eye has attached a few photos for your amusement only. Although the Eye is not the jester for his Majesty Like others appear to be; nevertheless this is entertaining.
Dec 24, 2010
Is There a Dirty Bird Involved?
The Eye came and conquered. For the majority, those who should be gone from City Hall were sent packing. The thought that Richard Berry was too good to be true did in fact become true. In the spirit of the Holidays, it was decided to give you an early Christmas present. THE EYE IS BACK! The Eye is in full force, stronger than ever, and the Eye is on it's next conquest... the errors that exist in the Berry administration! Sitting at the table, so many stories to give you, but the Eye’s welcome back story could be no other than what is going on with former Albuquerque Police Officer Brad Ahrensfield. For those of you who have no idea about the current events, let the Eye bring you up to date.
Brad Ahrensfield was a veteran police officer, serving many facets of APD including SWAT, Academy Training, and Field Services. Our Eyes tell us that Officer Ahrensfield is truly liked and admired throughout APD and that admiration still continues today. So what went wrong? Officer Ahrensfield was indicted for obstructing a federal investigation. The feds claimed Ahrensfield tipped off the owner of a car shop which they were investigating for various crimes, including drug activity. The perplexing question is, “Was it a coincidence that the car shop that provided services to APD and BCSO was led by Sheriff Darren White?” Officer Ahrensfield has always proclaimed his innocence but earlier this month; a jury found Ahrensfield guilty of obstruction of justice, and Ahrensfield took the hit for the feds allegations.
This is where it appears that the plot thickens. Two days after the conviction, our Eyes tell us that both KOAT and KRQE printed a story on their websites stating that Brad Ahrensfield’s attorneys had filed an appeal to overturn the conviction. The appeal, according to both news outlets, was based on the fact that key evidence was not given to Ahrensfield’s attorney; evidence that could provide reasonable doubt. Thus, allowing Ahrensfield to clear his name. Both stories stated that the whistleblower was “Darren White’s girlfriend.” Our Eyes could not believe what they read, how would Darren’s “girlfriend” have any information on any ongoing federal investigation? Less than an hour after being released, the stories were pulled from the websites, nothing left, not a trace. When the Eye went back to the hyperlink that had originally led us to the story on KRQE, this is what we were met with:
http://www.krqe.com/dpp/news/local/central/convicted-ex-cop-files-motion-to-dismiss
“Sorry, the page you requested was not found.
‘Please check the URL for mistakes. You can also try using the site navigation or search tool to find your content.’”
Click here to go to the home page.
Our Eyes called both news stations who adamantly denied any retraction(s). The Eye knew differently and observed it with its’ OWN EYES. The Eye is still searching for answers and will not stop until they are found.
The Eye has obtained the Motion to Dismiss filed by Ahrensfield’s attorney and the Eye is providing it to you. The Eye would take time and explain the Motion, but as you read it you will quickly discover it speaks for itself, no translation necessary. If these accusations against White’s girlfriend (now wife) are true, what will transpire out of this Motion? There are many questions to be asked, with little answers. Is this why White married Kathleen McConnell? After all, now she is White’s wife and does not have to testify against her husband. Does anyone find this odd or strange? This is a time when stellar leaders must step up to the plate and do what is right. Mayor Berry, do you see the issue here? To our new, incoming Honorable Governor, Suzanna Martinez; as a prosecutor do you see an issue here? We ask that our leaders do what is right and act accordingly.
Since the Eye enjoys spice; there is an e-mail included after the motion that was sent to Mayor Berry and other leaders. This citizen is concerned as the Eye is and hits the highpoint. Folks, it’s not just the Eye who wants to know; it’s the citizenry.
Enjoy your reading, Enjoy your Holidays, and most of all please know that the Eye will always seek out the truth!
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, )
... )
Plaintiff, )
)
v. ) 09-CR-3457
)
BRAD AHRENSFIELD )
)
Defendant. )
DEFENDANT BRAD AHRENSFIELD’S SUPPLEMENTAL BRIEF
IN SUPPORT OF HIS MOTION TO DISMISS INDICTMENT
WITH PREJUDICE BASED ON BRADY VIOLATION
Defendant Brad Ahrensfield, by and through his counsel of record, Bowles and Crow, hereby submits his supplemental brief in support of his motion to dismiss, and prays that this Honorable Court dismiss the indictment in this matter with prejudice, stating as follows:
BACKGROUND
As this Court is aware, on Tuesday, December 14, 2010, day two of the trial, the government disclosed for the first time a transcript of a recorded interview of the key witness in its case in chief. That interview took place back on April 27, 2010. On December 15, 2010, Mr. Ahrensfield filed his motion to dismiss based on a clear Brady violation, which included excerpts from the transcript of interview. The Court heard testimony on the motion to dismiss. That same day, on December 15, 2010, which was day three into the trial, the government disclosed for the first time that it also had a transcript of a telephone conversation between its testifying agent and the same key witness, Shawn Bryan. This conversation also took place back in April of 2010. The defense has never received a recording of either the telephone conversation or the interview. Mr. Ahrensfield’s motion outlined generally the exculpatory nature of the interview transcript.# As of December 15, 2010, the government still had not informed the defense that there was also a transcript of the telephone conversation with... Shawn Bryan. That issue was not known to the defense or addressed when drafting the motion to dismiss for the initial Brady violation. The government knew for sure on December 14, 2010 that the defense was not in possession of the “manila envelope”. It was not until December 15, 2010, that the defense learned of the transcript of a phone call that was also in the manila envelope, and only by testimony of Ms. Neda’s assistant. The transcript of that telephone conversation clearly shows the improper quid pro quo that took place between the agent and prosecution witness Shawn Bryan. Because of the prosecution’s withholding of this interview, even when Ms. Neda knew that the defense was not in possession of the “manila envelope”, Shawn Bryan could not be questioned about it.
There is no dispute about when the interview and the phone conversation took place, in April of 2010. Despite that, there was never a recording sent to the defense, nor was the defense ever notified about the existence of the recordings, or that recordings were being transcribed. Ms. Neda first stated to the Court that the transcript was “made available” to the defense on September 22, 2010. However, her legal assistant directly contradicted this statement by testifying that the transcripts were made available November 18, 2010. There is no dispute about when the transcripts of the recordings were received by the government, on September 21, 2010, as stamped. Despite that, the transcripts were not mailed or hand delivered.# In addition, the defense was never provided the FBI 302 interview reports from the interview or the phone call, which were no doubt created. In sum, the prosecution did not want the defense to know about their post-trial interactions with Shawn Bryan. The defense disputes that the government ever made the transcripts available prior to trial. And, in fact, only by happenstance during Ms. Neda’s examination of Shawn Bryan did the defense learn of the existence of a new transcript. Assum...ing, arguendo, that the government’s story is true, that Ms. Murphy left the transcripts at the receptionist desk on November 18, 2010, this was a little over a week before the trial was set to begin on November 30, 2010. This begs the question as to why the government would knowingly hold on to clearly exculpatory evidence that it had since April, and not notify the defense until a week before trial about its existence. Problematically, the transcripts reveal several areas of investigation which the defense could and would have pursued, including apparent extensive text messages from Darren White’s wife to Shawn Bryan’s wife about details of the investigation into the Car Shop.
The testimony of Ms. Murphy also established that the government knew the transcripts would sit at the receptionist desk for 30 days, which would be after trial was set to be complete, before the transcripts would be flagged and sent back up to be mailed.
The evidence, however, better supports the fact that these transcripts were never there for pick up. As mentioned above, the government first said the transcripts were available on September 22, 2010. That could not possibly be true because the testimony of Ms. Garcia established that she picked up documents at the US Attorney’s Office on November 10, 2010, that she specifically asked if there was anything for the firm, and saw the receptionist look and say there was nothing. Then, the government’s story changed through its witness Ms. Murphy, who testified that she placed the documents there on November 18, 2010, when she also phoned and spoke with someone at Bowles and Crow, although she does not know who she supposedly spoke with about the documents. This is in direct contradiction of Ms. Neda’s statements that she provided the documents to the defense September 22. There was no email to anyone at Bowles and Crow about the documents. According to Ms. Murphy, there was no “follow up phone call” about the documents. Ms. Zamora answers the phones at Bowles and Crow and testified that she never received a call about Ahrensfield discovery on November 18. Knowing trial was approaching in a week, the office would promptly pick up any documents if it were told about them.
Additionally, and most damning to the government’s second story, is that Bowles and Crow’s runner, Ms. Jordan Gull, testified that she went to the U.S. Attorney’s Office on December 1, 2010 to deliver Christmas invitations and check if there was anything to pick up for the firm. Ms. Gull was told there was nothing. Moreover, there is suspiciously no date stamp of when those documents were supposedly left at the reception desk, despite that it is the usual policy for there to be a date stamp. There is suspiciously no cover letter included with the documents, although it is the usual policy for documents left for pick up to include a cover letter. The transcripts also were suspiciously not Bates stamped, although discovery from the U.S. Attorney’s Office is routinely Bates stamped to have a preserved record as to what was provided to the defense. The absence of any cover letter, Bates stamping, or dating of the envelope containing the two transcripts is very troubling and completely inconsistent and contradictory with Office policy.
Finally, during argument on this matter, Ms. Neda stated to the Court that she had sent an email to Mr. Miles Hanisee, counsel for Mr. Bryan, indicating that the transcript had been produced. However what Ms. Neda failed to inform the Cour...t of is that: 1) the email was sent December 3, 2010, 10 days before trial was to start, 2) she indicated that Sam [Bregman] may have provided the statements even though she knew on April 27 that Mr. Bryan indicated to the FBI that Sam no longer represented him, 3) counsel for Mr. Bryan is obviously not who she is obligated to produce Brady material to for the trial of Mr. Ahrensfield, 4) Mr. Hanisee stated to her in a reply email on that same day, that he in fact did not have the transcripts of the taped interview, and 5) Ms. Neda apparently never responded to Mr. Hanisee providing him with any transcript. Ms. Neda should have known by Mr. Hanisee’s response that she hadn’t disclosed the transcript to even her own witness to prepare him for his testimony, much less the defense. The email Ms. Neda referenced was nothing more than a calculated move in an effort to show the Court she had not acted in bad faith, when in fact she knew that the transcript was never provided to the defense. Thus, Ms. Neda misrepresented to the Court that Mr. Hanisee had received the transcript, when in fact he had not.
LEGAL ARGUMENT
A Brady Violation is Undisputedly Established.
The arguments establishing the Brady violation were addressed in Mr. Ahrensfield’s Motion to Dismiss and will not be completely rehashed here. Suppression of the evidence is shown, at a minimum, by the undeniable timeline that was reinforced through the testimony at the hearing, and the fact that to this day, there has been no audio recording of the interview or the phone call disclosed to the defense. Mr. Ahrensfield was entitled not only to the transcripts, but also to the best evidence, the actual recordings. There are obvious differences between a transcript and an audio recording. Defense counsel could have much more effectively cross-examined Agent McCandless with the actual recording of his words rather than a transcript.# Favorability to the accused and materiality have been identified in the motion through citation to the withheld interview transcript, identifying the exculpatory nature of the interview of Shawn Bryan. The defense was denied the opportunity to pursue leads by subpoenaing the phone records of Shawn Bryan and his wife Erica, referenced in the interview, and were denied the opportunity to confront Darren White about those records, question Shawn Bryan and Joe Hudson, or use those highly exculpatory conversations as part of trial strategy. In addition, the recordings were not available to be played for the jury, for example, to impeach Agent McCandless with his own statements. The government’s primary attack at trial was to discredit Shawn Bryan. For example, in closing Ms. Neda repeatedly stated that Shawn Bryan was lying. During the trial she impeached him with his prior testimony. The texts Mr. Bryan referr...ed to during his interview with the government in April would have bolstered Shawn Bryan’s credibility. This is in addition to the fact that the texts would show that Darren White's wife was the source of much of the information Mr. Bryan was told. Given Mr. Bryan’s memory problems, it would be helpful to the defense to show that someone other than Mr. Ahrensfield had leaked the details which could have “derailed the investigation.”
As to the telephone call transcription, this Court did allow the defense to use the conversation when cross-examining Agent McCandless, who this Court ordered to be recalled because of the lack of disclosure. However, the defense was not able to cross Shawn Bryan. The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”. “The prosecution has an affirmative duty to disclose evidence favorable to a defendant”. Kyles v. Whitley, 514 U.S. 419, 433 (U.S. 1995) (emphasis added). These facts respectfully establish a due process violation; the next question for the Court is what should be the proper remedy.
Bad Faith Is Not the Only Standard for Dismissal.
As cited in the motion, dismissal is proper where there is a showing of willful misconduct, demonstrable prejudice, or substantial threat thereof. See, Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir. V.I. 2005). In that case, the Court stated,
The United States Supreme Court is concerned with both prejudice and deterrence, and when both of those factors call for a particularly harsh sanction, dismissal--the harshest available sanction for a Brady violation--may be proper. Id., at 253. “[W]here a defendant can show both willful misconduct by the government, and prejudice, dismissal may be proper.” Id., at 254-255.
Thus, the Courts have stated that “willful misconduct”, “demonstrable prejudice”, or “substanti...al threat [of demonstrable prejudice]” could warrant a dismissal on a Brady violation. In addition, both prejudice and the need for deterrence could also warrant a dismissal.
Dismissal is also proper pursuant Rule 16(d)(2)(D), which authorizes a court to "enter any order that is just under the circumstances" if a party fails to comply with the discovery rule. Id. (Emphasis added) Here, the Court’s standing discovery Order was entered on December 17, 2009. That Order states, If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under Rule 16, such party shall promptly notify the other party or that other party's attorney and the court of the existence of the additional evidence or material.
See, Doc 8 at 4. In a separate section, the Order required the government to timely disclose Brady material. Id. at 5. A trial court need not rely on Brady to justify dismissal of an indictment as a remedy for improper prosecutorial conduct; it may also remedy Rule 16 discovery violations under its supervisory powers. Id., at 258, citing, United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991) ("Dismissal of an indictment because of outrageous government conduct may be predicated on alternative grounds: a violation of due process [such as a Brady violation] or the court's supervisory powers."); see also, United States v. Ross, 372 F.3d 1097, 1107 (9th Cir. 2004). The purposes underlying the use of courts' supervisory powers are broad and include implementing remedies for violations of recognized rights and remedies designed to deter illegal conduct. See, United States v. Hasting, 461 U.S. 499, 505 (1983).
The government, at its own peril, made the decision not to comply, and it prejudiced the defense. Counsel for Mr. Ahrensfield, Mr. Bowles, had a lunch hour to attempt to digest a 106 page transcript of an interview and to attempt to distill all of the exculpatory points into a cross-examination. Mr. Ahrensfield was seriously prejudiced as a result of his counsel’s inability to have sufficient time to prepare. In Addition to the Particular Facts Here Implying Bad Faith, the Pattern of Such Misconduct Proves Bad Faith.
The inquiry into bad faith "turns on the government's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed [or suppressed]." Ariz. v. Youngblood, 488 U.S. 51, 57 (U.S. 1988). "A prosecutor should not inte...ntionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused" Kyles v. Whitley, supra at 437 (emphasis added); citing, ABA Model Rule of Professional Conduct 3.8(d) (1984) ("The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense").
In reviewing a trial court's remedy for an alleged Brady violation, an appellate court reviews conclusions of law de novo and reviews any findings of fact, where appropriate, for clear error. Virgin Islands v. Fahie, supra. “The intentional character of the government's misconduct affects the appropriate remedy”. Id., at
253,citing, United States v. Morrison, 449 U.S. 361, 365 (U.S. 1981). The Supreme Court in Morrison noted, for example, that a "pattern of recurring violations by investigative officers . . . might warrant the imposition of a more extreme remedy in order to deter further lawlessness." Id., quoting, Morrison, 449 U.S. at 365 n.
. “This statement suggests that the Court was concerned with both prejudice and deterrence, and that when both of those factors call for a particularly harsh sanction, dismissal - the harshest available sanction for a Brady violation - may be proper”. Id., see also, United States v. Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992) ("Dismissal of an indictment with prejudice is the most severe sanction possible.").
In United States v. Mitchell, we held that while "as a legal matter, the question of good faith versus bad faith is a distinction without a difference in the Brady context," "the existence of bad faith on the part of the prosecution is probative of materiality because it is 'doubtful that any prosecutor would in bad faith act to suppress evidence unless he or she believed it could affect the outcome of the trial.'" 365 F.3d 215, 255 (3d Cir. 2004) (quoting United States v. Jackson, 780 F.2d 1305, 1311 n. 4 (7th Cir. 1986)). We believe that bad faith may be of additional relevance in the context of choosing a remedy for a Brady violation. Id. Dismissal is warranted "only where the defendant is actually prejudiced . . . the challenged activity was something other than an isolated incident unmotivated by sinister ends or . . . misconduct challenged has become entrenched and flagra...nt"); United States v. Costanzo, 740 F.2d 251, 257 (3d Cir. 1984).
A pattern of constitutional violations may indeed be used to show recklessness on the part of a prosecutor. See Sample v. Diecks, 885 F.2d 1099, 1117 (3d Cir. 1989) ("The existence of a pattern of constitutional violations may provide a basis for implying deliberate indifference."); Farmer v. Brennan, 511 U.S. 825, 836, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994) ("Acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk."); see also Morrison, 449 U.S. at 365 n.2 (noting that higher penalties may be warranted where there is a pattern of misconduct). Moreover, a constitutional violation that results from a reckless disregard for a defendant's constitutional rights constitutes willful misconduct. See Wehr v. Burroughs Corp., 619 F.2d 276, 282 (3d Cir. 1980) ("only three degrees of culpability are associated with the term 'willful': intentional, knowing, or reckless"); cf. United States v. Johnstone, 107 F.3d 200, 208-09 (3d Cir. 1997) (holding that "willful[]" in federal criminal civil rights statute, 18 U.S.C. § 242 "means either particular purpose or reckless disregard"); United States v. Frost, 999 F.2d 737, 743 (3d Cir. 1993) (holding that "in order to secure suppression of the fruits of [a search based on a misleading search warrant affidavit], a defendant must show . . . that bad faith or reckless disregard existed on the part of the affiant"); Polselli v. Nationwide Mut. Fire Ins. Co., 23 F.3d 747, 751 (3d Cir. 1994) (holding, in the insurance context, that "recklessness . . . can support a finding of bad faith"). Thus, reckless misconduct, if prejudicial, may sometimes warrant dismissal. Otherwise, a prosecutor who sustains an erroneous view of her Brady obligations over time will be inadequately motivated to conform her understanding to the law. Virgin Islands v. Fahie, at 256. As previously addressed, it is the prosecution’s affirmative duty to timely produce exculpatory evidence to the defense. The time frame alone, that even the government admits to, between when it had this evidence in its possession in April..., and when it claimed to have produced it a week before trial in November, could not point to anything other than the obvious conclusion that the government intentionally suppressed this evidence and did not want the Ahrensfield defense to have it before trial, knowing of its exculpatory nature. This is especially true given that the recordings were made in April and have never been produced to this day.
Other evidence of bad faith is that although the government knew on December 14th that the defense was not aware of the phone transcript in the “manilla envelope”, Ms. Neda still withheld that knowledge until December 15th when it was revealed at the evidentiary hearing by Ms. Neda’s assistant that there was also a phone transcript in the envelope. This absolutely establishes bad faith and an attempt to keep the defense from having Brady material to use at trial. The government did not want the defense to have either transcript because Ms. Neda knew they were detrimental.# This action absolutely prejudiced Mr. Ahrensfield because he couldn’t cross-examine Mr. Bryan on the telephone call transcript even though Ms. Neda knew the defense did not have this transcript during Bryan’s testimony.
Finally, Ms. Neda should no longer be permitted to waive the “no bad faith” flag to avoid the consequences of her misconduct. Concealing Brady material from the defense until trial is a pattern of conduct that Ms. Neda has engaged in for at least a decade in prior cases. In and about 2000, Ms. Neda withheld crucial Brady/Giglio documents that resulted in the Honorable Leroy Hanson vacating a jury verdict. James Baiamonte was the attorney in that case, and the style of the case was United States v. Jesus "Jesse" Monclova. See Affidavit of James Baiamonte, forthcoming. In that case, Ms. Neda withheld crucial agreements made with various witnesses, which were directly exculpatory. She denied to Judge Hansen that there were any deals with certain witnesses, but Mr. Baiamonte later proved that to be completely untrue, by happenstance, having received the information from the civil attorney working on a related aspect of that case. Detrimental to the prosecution, the very documents that Ms. Neda denied existed, bore her signature.
In United States v. Cayatineto, 49 Fed. Appx. 278 (10th Cir. N.M. 2002) (unpublished), Ms. Neda is the listed prosecutor where, at trial, an investigator testified that he took several pictures of injuries in a fatal vehicle collision. When defense counsel approached the bench, claimed that he was never provided with those photos, and requested production, “the prosecution explained that they had been misplaced.” Id. at 278. The Court determined that “because defendant failed to raise any objection to the prosecution’s failure to preserve the photographs, defendant waived his due process claim”. Id. at 281. Once again, as in this case, Ms. Neda claimed an innocent reason for the lack of production of important exculpatory evidence.
Ms. Neda, once again, was involved in a Brady violation case in United States v. Torres, 569 F.3d 1277 (10th Cir. N.M. 2009). In that case, Ms. Neda’s Brady violation resulted in a 10th Circuit reversal of a conviction. In Torres, Ms. Neda obtained impeachment evidence related to a CI, and failed to disclose it prior to the trial. The evidence there was crucial because it was impeachment evidence related to the CI in a case where the vast majority of inculpatory evidence was based on nothing more than the lone witness’s testimony. Id. at 1277. Ms. Neda’s indiscretions would have never been discovered if not for the Eye of a prudent defense attorney who noticed in discovery in a related case that the CI was retained in other cases and had picked up other drug forgery charges. The defense’s investigations led to the allegation that Ms. Neda “knew that the CI had continued to engage in freelance drug dealing and forgery” during the relevant period of time she was working on Torres’ case. Id. at 1281. In that case, Ms. Neda also suppressed a document reporting a conversation in which the CI made a misidentification. Id. at 1280. A state bar disciplinary complaint was filed by Joe Romero against Ms. Neda for her Brady violations in that case. Ultimately, the United States Attorney’s Office dismissed and didn’t pursue the case further but, implausibly, the defendant in the meantime spent over 2 years in prison.
In addition to misconduct for Brady, Ms. Neda was the AUSA in United States v. Oberle, 136 F.3d 1414 (10th Cir. N.M. 1998), in which the 10th Circuit found that she acted improperly, but that the prosecutorial misconduct did not deprive that defendant of a fair trial:
The government argues that it merely highlighted admissible evidence for proper purposes…The transcript reveals, however, that in making these arguments the prosecutor exceeded the boundaries of commenting upon the evidence…This is more akin to arguing propensity than it is focusing the jury’s attention on the evidence, and it was improper…Id. at 1414.#
Also in United States v. Ramirez, 63 F.3d 937 (10th Cir. N.M. 1995), Ms. Neda was the AUSA who again was accused of prosecutorial misconduct and the 10th Circuit and the district court agreed “that the prosecutor’s statement wa...s in fact improper counsel argument”, but that the error was harmless. Id. at 937. Again, in United States v. Howell, 285 F.3d 1263 (10th Cir. N.M. 2002), Ms. Neda was the AUSA on the case where the defense claimed prosecutorial misconduct and misrepresentation of the evidence.
This pattern is quite disturbing. The willingness of the “win-at-any-cost” prosecutor to violate every principal of fundamental fairness to obtain a conviction has increased exponentially. See, Lawless, Joseph F. Jr., Prosecutorial Misconduct, Second Edition (1985), 396. Some prosecutors believe that they won’t get caught and, even if they do, that nothing will come of it. Id., citing, United States v. Ramming, 915 F. Supp. 854 (S.D. Tex. 1996); United States v. Oxman, 740 F.2d 1298 (3d Cir. Pa. 1984).
Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting opinion).
Given the prior complaints of misconduct regarding this prosecutor on this very issue, the exculpatory nature of the evidence the government chose to secrete in this case and the substantial prejudice to the defense, this Court should respectfully find a pattern and practice of misconduct relevant to whether there was bad faith in this matter, and respectfully dismiss the indictment. At some point, a prosecutor’s repeated pattern of misconduct should result in discipline. At some point, a prosecutor’s pattern of misconduct which has literally cost people their liberty, should be singled out and sanctioned harshly, as discipline and as a deterrent. Thus, Ms. Neda’s reckless and prejudicial misconduct warrants dismissal with prejudice. Otherwise, Ms. Neda, who has sustained an erroneous view of her Brady obligations over time, will be inadequately motivated to conform her understanding to the law. See, Virgin Islands v. Fahie, at 256. If anything, our constitution guarantees that defendants will be provided key, material, exculpatory evidence, in a timely fashion, so that they can intelligently prepare a defense. That did not happen in this case.
In the Alternative, Mr. Ahrensfield Should Receive a New Trial.
The Fifth Amendment guarantees that no person shall be deprived of liberty without due process of law.
It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced. The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.United States v. Robinson, 583 F.3d 1265, 1269 (10th Cir. Kan. 2009). In Robinson, the 10th Circuit reversed and remanded for a new trial where the government did not disclose impeachment evidence regarding the defendant’s main witness tha...t was essentially uncorroborated. Here, there is no dispute that the government withheld impeachment and exculpatory evidence for 8 months. The defense asserts that the government never made it available until the second and third day of trial. This evidence, if provided to the defense timely as required, would have reasonably resulted in a different trial, with likely a different result. The defense was denied the time and opportunity to prepare and pursue multiple leads suggested by Shawn Bryan in his interview, including being able to subpoena text messages from the phone of Erica Ruiz suggesting that Mr. Bryan could have learned many of the details of the investigation from Darren White’s wife,# and including serious issues regarding the FBI’s proposed quid pro quo arrangement with Shawn Bryan. A defendant who seeks a new trial under Fed. R. Crim. P. 33 based on an alleged Brady violation must show that: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material. United States v. Velarde, 485 F.3d 553 (10th Cir. N.M. 2007). At an absolute minimum, Mr. Ahrensfield has respectfully shown this through these facts.
WHEREFORE, Mr. Ahrensfield prays that this Court dismiss the indictment with prejudice due to Ms. Neda’s Brady violation, or in the alternative, to grant Mr. Ahrensfield a new trial.
Respectfully submitted,
/s/ Jason Bowles
Jason Bowles
B.J. Crow
Monnica Garcia
Bowles and Crow
P.O. Box 25186
Albuquerque, N.M. 87125-5186
I hereby certify that a true and correct
copy hereof was sent electronically this
19th day of December, 2010 to:
Tara Neda
Assistant United States Attorney
/s/ B.J. Crow
Bowles & Crow
Subject: BOTH APD/PSO and DMD both non-compliant-will file formal complaint with AG to make matter of record-is the PSO tied to the convicted Cop Brad Ahrensfield matter?
Ms Bailey
It’s pretty clear that neither DMD, APD/PSO and likely too many others in the Berry administration feels compliance with the 15 day NM Inspection of Public Records Act (IPRA) response requirement much less providing all IPRA requested information (particularly the incriminating documentation and recordings) is really something they have to do.
This is much like when in past years, both APD Chief Schultz and PSO Darren White (while he was BCSO Sheriff) decided the NM law governing evidence seizures somehow didn’t apply to them or their people. It’s was seemingly arrogance and dishonesty by both of them fueled by those above them who also believed NM laws were mere suggestions. We taxpayers paid dearly when both the City and BCSO essentially acknowledged guilt and settled both lawsuits against them.
This repeated non-compliance proves once again that the Mayor’s ABQVIEW promise of a new era of transparency and accountability is nothing more than a sick joke played on us trusting citizens.
I don’t know whether AG Gary King or his local people have advised Mayor Berry to not worry about complying about this State law-the NM IPRA, but I intend to file formal non-compliance complaints to make this a matter of record. Possibly it will be up to incoming Governor Susana Martinez to put teeth in this law and get us out of this third world culture of corruption that too many here seem used to.
Thanks for your past help but Mayor Berry has essentially relegated you to merely pushing paper there-not really allowing you to insist on compliance. That’s sad.
This was also true of your predecessor under Mayor Chavez.
(Citizen’s name was withheld to protect their privacy)
P.S. Related
I have been following closely and with interest the recent conviction of former APD Officer Brad Ahrensfield and recent appeal by his attorney. The defense claims when the FBI did the interviews they were told it was Sheriff/PSO Darren White's then girlfriend (now wife) who tipped Shawn Bryan the shop owner off that he was the subject of the FBI investigation and not Ahrensfield.
I wonder why both KRQE.com (who previously employed Darren White) and KOAT.com (who employed the Mayor’s Communications Director Chris Rameriz) suddenly pulled their website stories of Mr. White’s ties (through his then girlfriend) to the shop owner. Also recall that TJ Wilham the PSO’s PIO worked for the Journal before joining the Berry team-thus explaining much of the filtered news we receive there. I understand that BCSO undercover vehicles were also serviced at that same shop when Mr. White was Sheriff. This all seems so curious-but maybe not so in this City and State.
Maybe the cover-up culture permeates the entire Berry Administration-or maybe I just got bad information on all this. I assume Mayor Berry is also concerned-wants the straight story.
Brad Ahrensfield was a veteran police officer, serving many facets of APD including SWAT, Academy Training, and Field Services. Our Eyes tell us that Officer Ahrensfield is truly liked and admired throughout APD and that admiration still continues today. So what went wrong? Officer Ahrensfield was indicted for obstructing a federal investigation. The feds claimed Ahrensfield tipped off the owner of a car shop which they were investigating for various crimes, including drug activity. The perplexing question is, “Was it a coincidence that the car shop that provided services to APD and BCSO was led by Sheriff Darren White?” Officer Ahrensfield has always proclaimed his innocence but earlier this month; a jury found Ahrensfield guilty of obstruction of justice, and Ahrensfield took the hit for the feds allegations.
This is where it appears that the plot thickens. Two days after the conviction, our Eyes tell us that both KOAT and KRQE printed a story on their websites stating that Brad Ahrensfield’s attorneys had filed an appeal to overturn the conviction. The appeal, according to both news outlets, was based on the fact that key evidence was not given to Ahrensfield’s attorney; evidence that could provide reasonable doubt. Thus, allowing Ahrensfield to clear his name. Both stories stated that the whistleblower was “Darren White’s girlfriend.” Our Eyes could not believe what they read, how would Darren’s “girlfriend” have any information on any ongoing federal investigation? Less than an hour after being released, the stories were pulled from the websites, nothing left, not a trace. When the Eye went back to the hyperlink that had originally led us to the story on KRQE, this is what we were met with:
http://www.krqe.com/dpp/news/local/central/convicted-ex-cop-files-motion-to-dismiss
“Sorry, the page you requested was not found.
‘Please check the URL for mistakes. You can also try using the site navigation or search tool to find your content.’”
Click here to go to the home page.
Our Eyes called both news stations who adamantly denied any retraction(s). The Eye knew differently and observed it with its’ OWN EYES. The Eye is still searching for answers and will not stop until they are found.
The Eye has obtained the Motion to Dismiss filed by Ahrensfield’s attorney and the Eye is providing it to you. The Eye would take time and explain the Motion, but as you read it you will quickly discover it speaks for itself, no translation necessary. If these accusations against White’s girlfriend (now wife) are true, what will transpire out of this Motion? There are many questions to be asked, with little answers. Is this why White married Kathleen McConnell? After all, now she is White’s wife and does not have to testify against her husband. Does anyone find this odd or strange? This is a time when stellar leaders must step up to the plate and do what is right. Mayor Berry, do you see the issue here? To our new, incoming Honorable Governor, Suzanna Martinez; as a prosecutor do you see an issue here? We ask that our leaders do what is right and act accordingly.
Since the Eye enjoys spice; there is an e-mail included after the motion that was sent to Mayor Berry and other leaders. This citizen is concerned as the Eye is and hits the highpoint. Folks, it’s not just the Eye who wants to know; it’s the citizenry.
Enjoy your reading, Enjoy your Holidays, and most of all please know that the Eye will always seek out the truth!
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, )
... )
Plaintiff, )
)
v. ) 09-CR-3457
)
BRAD AHRENSFIELD )
)
Defendant. )
DEFENDANT BRAD AHRENSFIELD’S SUPPLEMENTAL BRIEF
IN SUPPORT OF HIS MOTION TO DISMISS INDICTMENT
WITH PREJUDICE BASED ON BRADY VIOLATION
Defendant Brad Ahrensfield, by and through his counsel of record, Bowles and Crow, hereby submits his supplemental brief in support of his motion to dismiss, and prays that this Honorable Court dismiss the indictment in this matter with prejudice, stating as follows:
BACKGROUND
As this Court is aware, on Tuesday, December 14, 2010, day two of the trial, the government disclosed for the first time a transcript of a recorded interview of the key witness in its case in chief. That interview took place back on April 27, 2010. On December 15, 2010, Mr. Ahrensfield filed his motion to dismiss based on a clear Brady violation, which included excerpts from the transcript of interview. The Court heard testimony on the motion to dismiss. That same day, on December 15, 2010, which was day three into the trial, the government disclosed for the first time that it also had a transcript of a telephone conversation between its testifying agent and the same key witness, Shawn Bryan. This conversation also took place back in April of 2010. The defense has never received a recording of either the telephone conversation or the interview. Mr. Ahrensfield’s motion outlined generally the exculpatory nature of the interview transcript.# As of December 15, 2010, the government still had not informed the defense that there was also a transcript of the telephone conversation with... Shawn Bryan. That issue was not known to the defense or addressed when drafting the motion to dismiss for the initial Brady violation. The government knew for sure on December 14, 2010 that the defense was not in possession of the “manila envelope”. It was not until December 15, 2010, that the defense learned of the transcript of a phone call that was also in the manila envelope, and only by testimony of Ms. Neda’s assistant. The transcript of that telephone conversation clearly shows the improper quid pro quo that took place between the agent and prosecution witness Shawn Bryan. Because of the prosecution’s withholding of this interview, even when Ms. Neda knew that the defense was not in possession of the “manila envelope”, Shawn Bryan could not be questioned about it.
There is no dispute about when the interview and the phone conversation took place, in April of 2010. Despite that, there was never a recording sent to the defense, nor was the defense ever notified about the existence of the recordings, or that recordings were being transcribed. Ms. Neda first stated to the Court that the transcript was “made available” to the defense on September 22, 2010. However, her legal assistant directly contradicted this statement by testifying that the transcripts were made available November 18, 2010. There is no dispute about when the transcripts of the recordings were received by the government, on September 21, 2010, as stamped. Despite that, the transcripts were not mailed or hand delivered.# In addition, the defense was never provided the FBI 302 interview reports from the interview or the phone call, which were no doubt created. In sum, the prosecution did not want the defense to know about their post-trial interactions with Shawn Bryan. The defense disputes that the government ever made the transcripts available prior to trial. And, in fact, only by happenstance during Ms. Neda’s examination of Shawn Bryan did the defense learn of the existence of a new transcript. Assum...ing, arguendo, that the government’s story is true, that Ms. Murphy left the transcripts at the receptionist desk on November 18, 2010, this was a little over a week before the trial was set to begin on November 30, 2010. This begs the question as to why the government would knowingly hold on to clearly exculpatory evidence that it had since April, and not notify the defense until a week before trial about its existence. Problematically, the transcripts reveal several areas of investigation which the defense could and would have pursued, including apparent extensive text messages from Darren White’s wife to Shawn Bryan’s wife about details of the investigation into the Car Shop.
The testimony of Ms. Murphy also established that the government knew the transcripts would sit at the receptionist desk for 30 days, which would be after trial was set to be complete, before the transcripts would be flagged and sent back up to be mailed.
The evidence, however, better supports the fact that these transcripts were never there for pick up. As mentioned above, the government first said the transcripts were available on September 22, 2010. That could not possibly be true because the testimony of Ms. Garcia established that she picked up documents at the US Attorney’s Office on November 10, 2010, that she specifically asked if there was anything for the firm, and saw the receptionist look and say there was nothing. Then, the government’s story changed through its witness Ms. Murphy, who testified that she placed the documents there on November 18, 2010, when she also phoned and spoke with someone at Bowles and Crow, although she does not know who she supposedly spoke with about the documents. This is in direct contradiction of Ms. Neda’s statements that she provided the documents to the defense September 22. There was no email to anyone at Bowles and Crow about the documents. According to Ms. Murphy, there was no “follow up phone call” about the documents. Ms. Zamora answers the phones at Bowles and Crow and testified that she never received a call about Ahrensfield discovery on November 18. Knowing trial was approaching in a week, the office would promptly pick up any documents if it were told about them.
Additionally, and most damning to the government’s second story, is that Bowles and Crow’s runner, Ms. Jordan Gull, testified that she went to the U.S. Attorney’s Office on December 1, 2010 to deliver Christmas invitations and check if there was anything to pick up for the firm. Ms. Gull was told there was nothing. Moreover, there is suspiciously no date stamp of when those documents were supposedly left at the reception desk, despite that it is the usual policy for there to be a date stamp. There is suspiciously no cover letter included with the documents, although it is the usual policy for documents left for pick up to include a cover letter. The transcripts also were suspiciously not Bates stamped, although discovery from the U.S. Attorney’s Office is routinely Bates stamped to have a preserved record as to what was provided to the defense. The absence of any cover letter, Bates stamping, or dating of the envelope containing the two transcripts is very troubling and completely inconsistent and contradictory with Office policy.
Finally, during argument on this matter, Ms. Neda stated to the Court that she had sent an email to Mr. Miles Hanisee, counsel for Mr. Bryan, indicating that the transcript had been produced. However what Ms. Neda failed to inform the Cour...t of is that: 1) the email was sent December 3, 2010, 10 days before trial was to start, 2) she indicated that Sam [Bregman] may have provided the statements even though she knew on April 27 that Mr. Bryan indicated to the FBI that Sam no longer represented him, 3) counsel for Mr. Bryan is obviously not who she is obligated to produce Brady material to for the trial of Mr. Ahrensfield, 4) Mr. Hanisee stated to her in a reply email on that same day, that he in fact did not have the transcripts of the taped interview, and 5) Ms. Neda apparently never responded to Mr. Hanisee providing him with any transcript. Ms. Neda should have known by Mr. Hanisee’s response that she hadn’t disclosed the transcript to even her own witness to prepare him for his testimony, much less the defense. The email Ms. Neda referenced was nothing more than a calculated move in an effort to show the Court she had not acted in bad faith, when in fact she knew that the transcript was never provided to the defense. Thus, Ms. Neda misrepresented to the Court that Mr. Hanisee had received the transcript, when in fact he had not.
LEGAL ARGUMENT
A Brady Violation is Undisputedly Established.
The arguments establishing the Brady violation were addressed in Mr. Ahrensfield’s Motion to Dismiss and will not be completely rehashed here. Suppression of the evidence is shown, at a minimum, by the undeniable timeline that was reinforced through the testimony at the hearing, and the fact that to this day, there has been no audio recording of the interview or the phone call disclosed to the defense. Mr. Ahrensfield was entitled not only to the transcripts, but also to the best evidence, the actual recordings. There are obvious differences between a transcript and an audio recording. Defense counsel could have much more effectively cross-examined Agent McCandless with the actual recording of his words rather than a transcript.# Favorability to the accused and materiality have been identified in the motion through citation to the withheld interview transcript, identifying the exculpatory nature of the interview of Shawn Bryan. The defense was denied the opportunity to pursue leads by subpoenaing the phone records of Shawn Bryan and his wife Erica, referenced in the interview, and were denied the opportunity to confront Darren White about those records, question Shawn Bryan and Joe Hudson, or use those highly exculpatory conversations as part of trial strategy. In addition, the recordings were not available to be played for the jury, for example, to impeach Agent McCandless with his own statements. The government’s primary attack at trial was to discredit Shawn Bryan. For example, in closing Ms. Neda repeatedly stated that Shawn Bryan was lying. During the trial she impeached him with his prior testimony. The texts Mr. Bryan referr...ed to during his interview with the government in April would have bolstered Shawn Bryan’s credibility. This is in addition to the fact that the texts would show that Darren White's wife was the source of much of the information Mr. Bryan was told. Given Mr. Bryan’s memory problems, it would be helpful to the defense to show that someone other than Mr. Ahrensfield had leaked the details which could have “derailed the investigation.”
As to the telephone call transcription, this Court did allow the defense to use the conversation when cross-examining Agent McCandless, who this Court ordered to be recalled because of the lack of disclosure. However, the defense was not able to cross Shawn Bryan. The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”. “The prosecution has an affirmative duty to disclose evidence favorable to a defendant”. Kyles v. Whitley, 514 U.S. 419, 433 (U.S. 1995) (emphasis added). These facts respectfully establish a due process violation; the next question for the Court is what should be the proper remedy.
Bad Faith Is Not the Only Standard for Dismissal.
As cited in the motion, dismissal is proper where there is a showing of willful misconduct, demonstrable prejudice, or substantial threat thereof. See, Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir. V.I. 2005). In that case, the Court stated,
The United States Supreme Court is concerned with both prejudice and deterrence, and when both of those factors call for a particularly harsh sanction, dismissal--the harshest available sanction for a Brady violation--may be proper. Id., at 253. “[W]here a defendant can show both willful misconduct by the government, and prejudice, dismissal may be proper.” Id., at 254-255.
Thus, the Courts have stated that “willful misconduct”, “demonstrable prejudice”, or “substanti...al threat [of demonstrable prejudice]” could warrant a dismissal on a Brady violation. In addition, both prejudice and the need for deterrence could also warrant a dismissal.
Dismissal is also proper pursuant Rule 16(d)(2)(D), which authorizes a court to "enter any order that is just under the circumstances" if a party fails to comply with the discovery rule. Id. (Emphasis added) Here, the Court’s standing discovery Order was entered on December 17, 2009. That Order states, If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under Rule 16, such party shall promptly notify the other party or that other party's attorney and the court of the existence of the additional evidence or material.
See, Doc 8 at 4. In a separate section, the Order required the government to timely disclose Brady material. Id. at 5. A trial court need not rely on Brady to justify dismissal of an indictment as a remedy for improper prosecutorial conduct; it may also remedy Rule 16 discovery violations under its supervisory powers. Id., at 258, citing, United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991) ("Dismissal of an indictment because of outrageous government conduct may be predicated on alternative grounds: a violation of due process [such as a Brady violation] or the court's supervisory powers."); see also, United States v. Ross, 372 F.3d 1097, 1107 (9th Cir. 2004). The purposes underlying the use of courts' supervisory powers are broad and include implementing remedies for violations of recognized rights and remedies designed to deter illegal conduct. See, United States v. Hasting, 461 U.S. 499, 505 (1983).
The government, at its own peril, made the decision not to comply, and it prejudiced the defense. Counsel for Mr. Ahrensfield, Mr. Bowles, had a lunch hour to attempt to digest a 106 page transcript of an interview and to attempt to distill all of the exculpatory points into a cross-examination. Mr. Ahrensfield was seriously prejudiced as a result of his counsel’s inability to have sufficient time to prepare. In Addition to the Particular Facts Here Implying Bad Faith, the Pattern of Such Misconduct Proves Bad Faith.
The inquiry into bad faith "turns on the government's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed [or suppressed]." Ariz. v. Youngblood, 488 U.S. 51, 57 (U.S. 1988). "A prosecutor should not inte...ntionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused" Kyles v. Whitley, supra at 437 (emphasis added); citing, ABA Model Rule of Professional Conduct 3.8(d) (1984) ("The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense").
In reviewing a trial court's remedy for an alleged Brady violation, an appellate court reviews conclusions of law de novo and reviews any findings of fact, where appropriate, for clear error. Virgin Islands v. Fahie, supra. “The intentional character of the government's misconduct affects the appropriate remedy”. Id., at
253,citing, United States v. Morrison, 449 U.S. 361, 365 (U.S. 1981). The Supreme Court in Morrison noted, for example, that a "pattern of recurring violations by investigative officers . . . might warrant the imposition of a more extreme remedy in order to deter further lawlessness." Id., quoting, Morrison, 449 U.S. at 365 n.
. “This statement suggests that the Court was concerned with both prejudice and deterrence, and that when both of those factors call for a particularly harsh sanction, dismissal - the harshest available sanction for a Brady violation - may be proper”. Id., see also, United States v. Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992) ("Dismissal of an indictment with prejudice is the most severe sanction possible.").
In United States v. Mitchell, we held that while "as a legal matter, the question of good faith versus bad faith is a distinction without a difference in the Brady context," "the existence of bad faith on the part of the prosecution is probative of materiality because it is 'doubtful that any prosecutor would in bad faith act to suppress evidence unless he or she believed it could affect the outcome of the trial.'" 365 F.3d 215, 255 (3d Cir. 2004) (quoting United States v. Jackson, 780 F.2d 1305, 1311 n. 4 (7th Cir. 1986)). We believe that bad faith may be of additional relevance in the context of choosing a remedy for a Brady violation. Id. Dismissal is warranted "only where the defendant is actually prejudiced . . . the challenged activity was something other than an isolated incident unmotivated by sinister ends or . . . misconduct challenged has become entrenched and flagra...nt"); United States v. Costanzo, 740 F.2d 251, 257 (3d Cir. 1984).
A pattern of constitutional violations may indeed be used to show recklessness on the part of a prosecutor. See Sample v. Diecks, 885 F.2d 1099, 1117 (3d Cir. 1989) ("The existence of a pattern of constitutional violations may provide a basis for implying deliberate indifference."); Farmer v. Brennan, 511 U.S. 825, 836, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994) ("Acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk."); see also Morrison, 449 U.S. at 365 n.2 (noting that higher penalties may be warranted where there is a pattern of misconduct). Moreover, a constitutional violation that results from a reckless disregard for a defendant's constitutional rights constitutes willful misconduct. See Wehr v. Burroughs Corp., 619 F.2d 276, 282 (3d Cir. 1980) ("only three degrees of culpability are associated with the term 'willful': intentional, knowing, or reckless"); cf. United States v. Johnstone, 107 F.3d 200, 208-09 (3d Cir. 1997) (holding that "willful[]" in federal criminal civil rights statute, 18 U.S.C. § 242 "means either particular purpose or reckless disregard"); United States v. Frost, 999 F.2d 737, 743 (3d Cir. 1993) (holding that "in order to secure suppression of the fruits of [a search based on a misleading search warrant affidavit], a defendant must show . . . that bad faith or reckless disregard existed on the part of the affiant"); Polselli v. Nationwide Mut. Fire Ins. Co., 23 F.3d 747, 751 (3d Cir. 1994) (holding, in the insurance context, that "recklessness . . . can support a finding of bad faith"). Thus, reckless misconduct, if prejudicial, may sometimes warrant dismissal. Otherwise, a prosecutor who sustains an erroneous view of her Brady obligations over time will be inadequately motivated to conform her understanding to the law. Virgin Islands v. Fahie, at 256. As previously addressed, it is the prosecution’s affirmative duty to timely produce exculpatory evidence to the defense. The time frame alone, that even the government admits to, between when it had this evidence in its possession in April..., and when it claimed to have produced it a week before trial in November, could not point to anything other than the obvious conclusion that the government intentionally suppressed this evidence and did not want the Ahrensfield defense to have it before trial, knowing of its exculpatory nature. This is especially true given that the recordings were made in April and have never been produced to this day.
Other evidence of bad faith is that although the government knew on December 14th that the defense was not aware of the phone transcript in the “manilla envelope”, Ms. Neda still withheld that knowledge until December 15th when it was revealed at the evidentiary hearing by Ms. Neda’s assistant that there was also a phone transcript in the envelope. This absolutely establishes bad faith and an attempt to keep the defense from having Brady material to use at trial. The government did not want the defense to have either transcript because Ms. Neda knew they were detrimental.# This action absolutely prejudiced Mr. Ahrensfield because he couldn’t cross-examine Mr. Bryan on the telephone call transcript even though Ms. Neda knew the defense did not have this transcript during Bryan’s testimony.
Finally, Ms. Neda should no longer be permitted to waive the “no bad faith” flag to avoid the consequences of her misconduct. Concealing Brady material from the defense until trial is a pattern of conduct that Ms. Neda has engaged in for at least a decade in prior cases. In and about 2000, Ms. Neda withheld crucial Brady/Giglio documents that resulted in the Honorable Leroy Hanson vacating a jury verdict. James Baiamonte was the attorney in that case, and the style of the case was United States v. Jesus "Jesse" Monclova. See Affidavit of James Baiamonte, forthcoming. In that case, Ms. Neda withheld crucial agreements made with various witnesses, which were directly exculpatory. She denied to Judge Hansen that there were any deals with certain witnesses, but Mr. Baiamonte later proved that to be completely untrue, by happenstance, having received the information from the civil attorney working on a related aspect of that case. Detrimental to the prosecution, the very documents that Ms. Neda denied existed, bore her signature.
In United States v. Cayatineto, 49 Fed. Appx. 278 (10th Cir. N.M. 2002) (unpublished), Ms. Neda is the listed prosecutor where, at trial, an investigator testified that he took several pictures of injuries in a fatal vehicle collision. When defense counsel approached the bench, claimed that he was never provided with those photos, and requested production, “the prosecution explained that they had been misplaced.” Id. at 278. The Court determined that “because defendant failed to raise any objection to the prosecution’s failure to preserve the photographs, defendant waived his due process claim”. Id. at 281. Once again, as in this case, Ms. Neda claimed an innocent reason for the lack of production of important exculpatory evidence.
Ms. Neda, once again, was involved in a Brady violation case in United States v. Torres, 569 F.3d 1277 (10th Cir. N.M. 2009). In that case, Ms. Neda’s Brady violation resulted in a 10th Circuit reversal of a conviction. In Torres, Ms. Neda obtained impeachment evidence related to a CI, and failed to disclose it prior to the trial. The evidence there was crucial because it was impeachment evidence related to the CI in a case where the vast majority of inculpatory evidence was based on nothing more than the lone witness’s testimony. Id. at 1277. Ms. Neda’s indiscretions would have never been discovered if not for the Eye of a prudent defense attorney who noticed in discovery in a related case that the CI was retained in other cases and had picked up other drug forgery charges. The defense’s investigations led to the allegation that Ms. Neda “knew that the CI had continued to engage in freelance drug dealing and forgery” during the relevant period of time she was working on Torres’ case. Id. at 1281. In that case, Ms. Neda also suppressed a document reporting a conversation in which the CI made a misidentification. Id. at 1280. A state bar disciplinary complaint was filed by Joe Romero against Ms. Neda for her Brady violations in that case. Ultimately, the United States Attorney’s Office dismissed and didn’t pursue the case further but, implausibly, the defendant in the meantime spent over 2 years in prison.
In addition to misconduct for Brady, Ms. Neda was the AUSA in United States v. Oberle, 136 F.3d 1414 (10th Cir. N.M. 1998), in which the 10th Circuit found that she acted improperly, but that the prosecutorial misconduct did not deprive that defendant of a fair trial:
The government argues that it merely highlighted admissible evidence for proper purposes…The transcript reveals, however, that in making these arguments the prosecutor exceeded the boundaries of commenting upon the evidence…This is more akin to arguing propensity than it is focusing the jury’s attention on the evidence, and it was improper…Id. at 1414.#
Also in United States v. Ramirez, 63 F.3d 937 (10th Cir. N.M. 1995), Ms. Neda was the AUSA who again was accused of prosecutorial misconduct and the 10th Circuit and the district court agreed “that the prosecutor’s statement wa...s in fact improper counsel argument”, but that the error was harmless. Id. at 937. Again, in United States v. Howell, 285 F.3d 1263 (10th Cir. N.M. 2002), Ms. Neda was the AUSA on the case where the defense claimed prosecutorial misconduct and misrepresentation of the evidence.
This pattern is quite disturbing. The willingness of the “win-at-any-cost” prosecutor to violate every principal of fundamental fairness to obtain a conviction has increased exponentially. See, Lawless, Joseph F. Jr., Prosecutorial Misconduct, Second Edition (1985), 396. Some prosecutors believe that they won’t get caught and, even if they do, that nothing will come of it. Id., citing, United States v. Ramming, 915 F. Supp. 854 (S.D. Tex. 1996); United States v. Oxman, 740 F.2d 1298 (3d Cir. Pa. 1984).
Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting opinion).
Given the prior complaints of misconduct regarding this prosecutor on this very issue, the exculpatory nature of the evidence the government chose to secrete in this case and the substantial prejudice to the defense, this Court should respectfully find a pattern and practice of misconduct relevant to whether there was bad faith in this matter, and respectfully dismiss the indictment. At some point, a prosecutor’s repeated pattern of misconduct should result in discipline. At some point, a prosecutor’s pattern of misconduct which has literally cost people their liberty, should be singled out and sanctioned harshly, as discipline and as a deterrent. Thus, Ms. Neda’s reckless and prejudicial misconduct warrants dismissal with prejudice. Otherwise, Ms. Neda, who has sustained an erroneous view of her Brady obligations over time, will be inadequately motivated to conform her understanding to the law. See, Virgin Islands v. Fahie, at 256. If anything, our constitution guarantees that defendants will be provided key, material, exculpatory evidence, in a timely fashion, so that they can intelligently prepare a defense. That did not happen in this case.
In the Alternative, Mr. Ahrensfield Should Receive a New Trial.
The Fifth Amendment guarantees that no person shall be deprived of liberty without due process of law.
It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced. The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.United States v. Robinson, 583 F.3d 1265, 1269 (10th Cir. Kan. 2009). In Robinson, the 10th Circuit reversed and remanded for a new trial where the government did not disclose impeachment evidence regarding the defendant’s main witness tha...t was essentially uncorroborated. Here, there is no dispute that the government withheld impeachment and exculpatory evidence for 8 months. The defense asserts that the government never made it available until the second and third day of trial. This evidence, if provided to the defense timely as required, would have reasonably resulted in a different trial, with likely a different result. The defense was denied the time and opportunity to prepare and pursue multiple leads suggested by Shawn Bryan in his interview, including being able to subpoena text messages from the phone of Erica Ruiz suggesting that Mr. Bryan could have learned many of the details of the investigation from Darren White’s wife,# and including serious issues regarding the FBI’s proposed quid pro quo arrangement with Shawn Bryan. A defendant who seeks a new trial under Fed. R. Crim. P. 33 based on an alleged Brady violation must show that: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material. United States v. Velarde, 485 F.3d 553 (10th Cir. N.M. 2007). At an absolute minimum, Mr. Ahrensfield has respectfully shown this through these facts.
WHEREFORE, Mr. Ahrensfield prays that this Court dismiss the indictment with prejudice due to Ms. Neda’s Brady violation, or in the alternative, to grant Mr. Ahrensfield a new trial.
Respectfully submitted,
/s/ Jason Bowles
Jason Bowles
B.J. Crow
Monnica Garcia
Bowles and Crow
P.O. Box 25186
Albuquerque, N.M. 87125-5186
I hereby certify that a true and correct
copy hereof was sent electronically this
19th day of December, 2010 to:
Tara Neda
Assistant United States Attorney
/s/ B.J. Crow
Bowles & Crow
Subject: BOTH APD/PSO and DMD both non-compliant-will file formal complaint with AG to make matter of record-is the PSO tied to the convicted Cop Brad Ahrensfield matter?
Ms Bailey
It’s pretty clear that neither DMD, APD/PSO and likely too many others in the Berry administration feels compliance with the 15 day NM Inspection of Public Records Act (IPRA) response requirement much less providing all IPRA requested information (particularly the incriminating documentation and recordings) is really something they have to do.
This is much like when in past years, both APD Chief Schultz and PSO Darren White (while he was BCSO Sheriff) decided the NM law governing evidence seizures somehow didn’t apply to them or their people. It’s was seemingly arrogance and dishonesty by both of them fueled by those above them who also believed NM laws were mere suggestions. We taxpayers paid dearly when both the City and BCSO essentially acknowledged guilt and settled both lawsuits against them.
This repeated non-compliance proves once again that the Mayor’s ABQVIEW promise of a new era of transparency and accountability is nothing more than a sick joke played on us trusting citizens.
I don’t know whether AG Gary King or his local people have advised Mayor Berry to not worry about complying about this State law-the NM IPRA, but I intend to file formal non-compliance complaints to make this a matter of record. Possibly it will be up to incoming Governor Susana Martinez to put teeth in this law and get us out of this third world culture of corruption that too many here seem used to.
Thanks for your past help but Mayor Berry has essentially relegated you to merely pushing paper there-not really allowing you to insist on compliance. That’s sad.
This was also true of your predecessor under Mayor Chavez.
(Citizen’s name was withheld to protect their privacy)
P.S. Related
I have been following closely and with interest the recent conviction of former APD Officer Brad Ahrensfield and recent appeal by his attorney. The defense claims when the FBI did the interviews they were told it was Sheriff/PSO Darren White's then girlfriend (now wife) who tipped Shawn Bryan the shop owner off that he was the subject of the FBI investigation and not Ahrensfield.
I wonder why both KRQE.com (who previously employed Darren White) and KOAT.com (who employed the Mayor’s Communications Director Chris Rameriz) suddenly pulled their website stories of Mr. White’s ties (through his then girlfriend) to the shop owner. Also recall that TJ Wilham the PSO’s PIO worked for the Journal before joining the Berry team-thus explaining much of the filtered news we receive there. I understand that BCSO undercover vehicles were also serviced at that same shop when Mr. White was Sheriff. This all seems so curious-but maybe not so in this City and State.
Maybe the cover-up culture permeates the entire Berry Administration-or maybe I just got bad information on all this. I assume Mayor Berry is also concerned-wants the straight story.
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